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A BILL TO BE ENTITLED
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AN ACT
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relating to community supervision, parole, or mandatory |
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supervision for certain drug possession offenses and to a person's |
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eligibility for an order of nondisclosure following a term of |
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community supervision for any of those offenses. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Subdivision (2), Subsection (a), Section 15, |
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Article 42.12, Code of Criminal Procedure, is amended to read as |
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follows: |
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(2) On conviction of a state jail felony punished |
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under Section 12.35(a), Penal Code, [other than a state jail felony
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listed in Subdivision (1),] the judge may suspend the imposition of |
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the sentence and place the defendant on community supervision or |
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may order the sentence to be executed. |
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SECTION 2. Article 42.12, Code of Criminal Procedure, is |
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amended by adding Section 15B to read as follows: |
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Sec. 15B. COMMUNITY SUPERVISION FOR POSSESSION OF |
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CONTROLLED SUBSTANCE. (a) In this section, "drug possession |
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offense" means an offense under: |
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(1) Section 481.115, 481.1151, 481.116, 481.117, |
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481.118, 481.119(b), 483.041(a), or 485.031, Health and Safety |
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Code, that is punishable as a felony of the third degree or as any |
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lower category of offense; or |
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(2) Section 481.121, Health and Safety Code, that is |
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punishable as a Class A misdemeanor or as any lower category of |
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offense. |
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(b) On conviction of a drug possession offense, the judge |
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shall suspend the imposition of the sentence and place a defendant |
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on community supervision unless: |
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(1) the judge determines by a preponderance of the |
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evidence that the defendant is a danger to the safety of others; |
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(2) the defendant has been previously convicted of an |
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offense other than: |
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(A) a drug possession offense; or |
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(B) an offense under the Transportation Code |
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punishable by fine only or an offense related to a pedestrian or the |
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parking of a motor vehicle punishable by fine only; |
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(3) the defendant is convicted in the same proceeding |
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of an additional offense, other than: |
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(A) a drug possession offense; or |
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(B) an offense under the Transportation Code |
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punishable by fine only or an offense related to a pedestrian or the |
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parking of a motor vehicle punishable by fine only; |
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(4) the following three criteria are met: |
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(A) the defendant has previously been convicted |
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on two or more occasions of a drug possession offense; |
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(B) the defendant has participated in two |
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different courses of treatment described by Subsection (e)(2); and |
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(C) the judge determines by clear and convincing |
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evidence that the defendant is unlikely to benefit from |
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participation in a drug treatment program; or |
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(5) the defendant has previously been discharged from |
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a drug court program established under Chapter 469, Health and |
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Safety Code, after failing to successfully complete the program and |
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the judge determines by clear and convincing evidence that the |
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defendant is unlikely to benefit from participation in a drug |
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treatment program under this section. |
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(c) A judge who determines under Subsection (b) that a |
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defendant is a danger to the safety of others or is unlikely to |
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benefit from participation in a drug treatment program shall enter |
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reasons for making that determination in the record of the |
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proceeding. |
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(d) The judge may suspend wholly or partly the imposition of |
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any fine imposed on a conviction if a defendant is placed on |
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community supervision under this section. |
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(e) A court granting community supervision under this |
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section shall require as a condition of community supervision that |
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the defendant: |
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(1) submit to an evidence-based risks and needs |
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screening and evaluation procedure approved by the community |
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justice assistance division of the Texas Department of Criminal |
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Justice, including a procedure developed under Section 509.003(d), |
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Government Code; |
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(2) if the evaluation indicates a need for treatment, |
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participate in a prescribed course of treatment in a program or |
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facility: |
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(A) licensed or approved by the Department of |
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State Health Services; or |
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(B) that complies with standards established by |
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the community justice assistance division of the Texas Department |
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of Criminal Justice; and |
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(3) pay a fee to cover all or part of the cost of the |
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course of treatment based on the defendant's ability to pay. |
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(f) A course of treatment under Subsection (e)(2) may |
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include: |
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(1) treatment in a faith-based program; |
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(2) outpatient treatment; |
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(3) halfway house treatment; |
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(4) narcotic replacement therapy; |
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(5) drug education or prevention courses; and |
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(6) inpatient or residential drug treatment to address |
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special detoxification, relapse, or severe dependence issues. |
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(g) In referring a defendant to a course of treatment in a |
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program described by Subsection (e)(2) and imposing conditions for |
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participation in the program, the judge shall order the defendant |
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to participate in the level of care that is the least restrictive |
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and most cost-effective to achieve: |
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(1) the outcome objectives prescribed by the program; |
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and |
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(2) the recommendations of a treatment professional. |
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(h) A court granting community supervision under this |
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section may require as a condition of community supervision, in |
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addition to the drug treatment program and other appropriate |
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conditions, that the defendant participate in: |
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(1) vocational training; |
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(2) family counseling; |
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(3) literacy training; and |
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(4) community service. |
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(i) Notwithstanding Section 21(b), if a defendant placed on |
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community supervision under this section violates the terms of that |
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supervision by committing another drug possession offense or by |
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violating any drug-related condition of supervision, the judge may: |
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(1) for a first violation, revoke supervision only if |
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the judge determines by a preponderance of the evidence that the |
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defendant poses a danger to the safety of others; |
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(2) for a second violation, revoke supervision only if |
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the judge determines by a preponderance of the evidence that the |
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defendant: |
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(A) poses a danger to the safety of others; or |
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(B) is unlikely to benefit from participation in |
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|
a drug treatment program; and |
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(3) for a third violation, revoke supervision. |
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(j) A judge who modifies a defendant's conditions of |
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supervision in response to the defendant's commission of another |
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drug possession offense or violation of a drug-related condition of |
|
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supervision shall consider imposing one or more of the following |
|
|
additional conditions of supervision: |
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(1) intensified drug treatment; |
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(2) vocational training; |
|
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(3) family counseling; |
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(4) literacy education; |
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(5) community service; |
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(6) intensive supervision; |
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(7) a period of confinement in a county jail for a |
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period authorized by Section 12; |
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(8) confinement in a community corrections facility |
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|
for a period authorized by Section 18; and |
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(9) if an evaluation of the defendant's drug usage |
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indicates that no other program will benefit the defendant, a |
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program offered in a prison or jail. |
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(k) In making a determination under this section as to |
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|
whether a defendant is unlikely to benefit from participation in a |
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drug treatment program, the judge shall consider whether the |
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defendant has previously: |
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(1) committed a serious violation of the rules of a |
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drug treatment program; or |
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(2) repeatedly committed violations of the rules of a |
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drug treatment program to an extent that inhibited the defendant's |
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ability to function in the program. |
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(l) After successful completion of a term of community |
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supervision imposed under this section, including completion of a |
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drug treatment program, a defendant may petition the court for |
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dismissal of the charges. If the judge, after providing notice and |
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giving attorneys for the defendant and the state an opportunity to |
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be heard, determines that the defendant substantially complied with |
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the conditions of supervision and successfully completed the drug |
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treatment program, the judge shall discharge the defendant, set |
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aside the verdict or permit the defendant to withdraw the plea, and |
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dismiss the accusation, complaint, information, or indictment in |
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|
the manner provided by Section 20(a). |
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SECTION 3. Section 411.081, Government Code, is amended by |
|
|
adding Subsection (d-1) and amending Subsection (e) to read as |
|
|
follows: |
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(d-1) Notwithstanding any other provision of this |
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|
subchapter, if a person is placed on community supervision under |
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Section 15B, Article 42.12, Code of Criminal Procedure, and |
|
|
subsequently receives a discharge and dismissal under Section |
|
|
15B(l), Article 42.12, Code of Criminal Procedure, and satisfies |
|
|
the requirements of Subsection (e), the person may petition the |
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|
court that placed the defendant on community supervision for an |
|
|
order of nondisclosure under this subsection. After notice to the |
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|
state and a hearing on whether the person is entitled to file the |
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petition and issuance of the order is in the best interest of |
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|
justice, the court shall issue an order prohibiting criminal |
|
|
justice agencies from disclosing to the public criminal history |
|
|
record information related to the offense giving rise to the |
|
|
community supervision. A criminal justice agency may disclose |
|
|
criminal history record information that is the subject of the |
|
|
order only to other criminal justice agencies, for criminal justice |
|
|
purposes, an agency or entity listed in Subsection (i), or the |
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person who is the subject of the order. A person may petition the |
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court that placed the person on community supervision for an order |
|
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of nondisclosure on payment of a $28 fee to the clerk of the court in |
|
|
addition to any other fee that generally applies to the filing of a |
|
|
civil petition. The payment may be made only on or after the |
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discharge and dismissal. |
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(e) A person is entitled to petition the court under |
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Subsection (d) or (d-1) only if prior to discharge and dismissal or |
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during the applicable period described by Subsection (d)(2) or (3) |
|
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[(d)(1), (2), or (3)], as appropriate, the person is not convicted |
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of or placed on deferred adjudication community supervision under |
|
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Section 5, Article 42.12, Code of Criminal Procedure, for any |
|
|
offense other than an offense under the Transportation Code |
|
|
punishable by fine only or, for purposes of Subsection (d-1), |
|
|
another drug possession offense. A person is not entitled to |
|
|
petition the court under Subsection (d) or (d-1) if the person has |
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been previously convicted or placed on deferred adjudication for: |
|
|
(1) an offense requiring registration as a sex |
|
|
offender under Chapter 62, Code of Criminal Procedure; |
|
|
(2) an offense under Section 20.04, Penal Code, |
|
|
regardless of whether the offense is a reportable conviction or |
|
|
adjudication for purposes of Chapter 62, Code of Criminal |
|
|
Procedure; |
|
|
(3) an offense under Section 19.02, 19.03, 22.04, |
|
|
22.041, 25.07, or 42.072, Penal Code; or |
|
|
(4) any other offense involving family violence, as |
|
|
defined by Section 71.004, Family Code. |
|
|
SECTION 4. Subsection (a), Section 508.283, Government |
|
|
Code, is amended to read as follows: |
|
|
(a) After a parole panel or designated agent of the board |
|
|
has held a hearing under Section 508.281, in any manner warranted by |
|
|
the evidence: |
|
|
(1) the board may recommend to the governor to |
|
|
continue, revoke, or modify the conditional pardon; and |
|
|
(2) a parole panel may continue, [revoke, or] modify, |
|
|
or, except as provided by Section 508.2835, revoke the parole or |
|
|
mandatory supervision. |
|
|
SECTION 5. Subchapter I, Chapter 508, Government Code, is |
|
|
amended by adding Section 508.2835 to read as follows: |
|
|
Sec. 508.2835. CERTAIN DRUG-RELATED CHARGES: LIMITATIONS |
|
|
ON REVOCATION AND CONDITIONS ON MODIFICATION. (a) In this |
|
|
section, "drug possession offense" has the meaning assigned by |
|
|
Section 15B, Article 42.12, Code of Criminal Procedure. |
|
|
(b) A parole panel may not revoke the parole or mandatory |
|
|
supervision of a releasee based on the commission of a drug |
|
|
possession offense or a violation of a drug-related condition of |
|
|
release unless: |
|
|
(1) the releasee commits or has previously been |
|
|
convicted of an offense other than: |
|
|
(A) a drug possession offense; or |
|
|
(B) an offense under the Transportation Code |
|
|
punishable by fine only or an offense related to a pedestrian or the |
|
|
parking of a motor vehicle punishable by fine only; |
|
|
(2) the parole panel determines that the releasee is a |
|
|
danger to the safety of others; or |
|
|
(3) the releasee has previously committed a violation |
|
|
of a drug-related condition of release on two or more occasions. |
|
|
(c) A parole panel that determines that a releasee is a |
|
|
danger to the safety of others shall enter reasons for making that |
|
|
determination in the record of the parole revocation hearing. |
|
|
(d) A parole panel that modifies a releasee's conditions of |
|
|
release in response to the releasee's commission of a new drug |
|
|
possession offense or a violation of a drug-related condition of |
|
|
release shall modify the conditions as necessary to require that |
|
|
the releasee: |
|
|
(1) participate in a prescribed course of treatment in |
|
|
a drug treatment program licensed or approved by the Department of |
|
|
State Health Services, which may include: |
|
|
(A) treatment in a faith-based program; |
|
|
(B) outpatient treatment; |
|
|
(C) halfway house treatment; |
|
|
(D) narcotic replacement therapy; |
|
|
(E) drug education or prevention courses; and |
|
|
(F) inpatient or residential drug treatment to |
|
|
address special detoxification, relapse, or severe dependence |
|
|
issues; and |
|
|
(2) pay a fee to cover all or part of the cost of the |
|
|
course of treatment based on the releasee's ability to pay. |
|
|
(e) A parole panel that modifies a releasee's conditions of |
|
|
release under Subsection (d) shall consider imposing one or more of |
|
|
the following additional conditions of release: |
|
|
(1) intensified drug treatment; |
|
|
(2) vocational training; |
|
|
(3) family counseling; |
|
|
(4) literacy education; |
|
|
(5) community service; |
|
|
(6) intensive supervision; and |
|
|
(7) a period of custodial supervision in a county jail |
|
|
for a period authorized by Section 508.283. |
|
|
SECTION 6. Subchapter J, Chapter 508, Government Code, is |
|
|
amended by adding Section 508.325 to read as follows: |
|
|
Sec. 508.325. ANNUAL REPORT ON PAROLE AND MANDATORY |
|
|
SUPERVISION WITH DRUG TREATMENT. (a) Not later than November 1 of |
|
|
each year, the department shall study and report to the legislature |
|
|
on the effectiveness and financial impact to the state during the |
|
|
preceding state fiscal year of implementing Section 508.2835. |
|
|
(b) The study and report must include an analysis of: |
|
|
(1) the implementation of Section 508.2835; |
|
|
(2) the adequacy of funding available for operation of |
|
|
the programs described by Section 508.2835; |
|
|
(3) the effect of implementing Section 508.2835 with |
|
|
respect to: |
|
|
(A) incarceration costs incurred by the state and |
|
|
local governments, including the cost of constructing prisons and |
|
|
jails; |
|
|
(B) the rate of recidivism among releasees whose |
|
|
conditions of release have been affected by Section 508.2835, |
|
|
compared with other releasees; and |
|
|
(C) the number of releasees whose conditions of |
|
|
release have been affected by Section 508.2835 and who utilize |
|
|
state welfare benefits, compared with other releasees; and |
|
|
(4) other effects of or issues with implementing |
|
|
Section 508.2835 that are identified by the department. |
|
|
SECTION 7. Chapter 509, Government Code, is amended by |
|
|
adding Section 509.016 to read as follows: |
|
|
Sec. 509.016. ANNUAL REPORT ON COMMUNITY SUPERVISION WITH |
|
|
DRUG TREATMENT. (a) Not later than November 1 of each year, the |
|
|
Texas Department of Criminal Justice shall study and report to the |
|
|
legislature on the effectiveness and financial impact to the state |
|
|
during the preceding state fiscal year of placing defendants on |
|
|
community supervision with drug treatment for a drug possession |
|
|
offense under Section 15B, Article 42.12, Code of Criminal |
|
|
Procedure. |
|
|
(b) The study and report must include an analysis of: |
|
|
(1) the implementation of Section 15B, Article 42.12, |
|
|
Code of Criminal Procedure; |
|
|
(2) the adequacy of funding available for operation of |
|
|
the programs described by Section 15B, Article 42.12, Code of |
|
|
Criminal Procedure; |
|
|
(3) the effect of implementing Section 15B, Article |
|
|
42.12, Code of Criminal Procedure, with respect to: |
|
|
(A) incarceration costs incurred by the state and |
|
|
local governments, including the cost of constructing prisons and |
|
|
jails; |
|
|
(B) the recidivism rate among defendants placed |
|
|
on community supervision under Section 15B, Article 42.12, Code of |
|
|
Criminal Procedure, compared with other defendants; and |
|
|
(C) the number of defendants placed on community |
|
|
supervision under Section 15B, Article 42.12, Code of Criminal |
|
|
Procedure, who utilize state welfare benefits, compared with other |
|
|
defendants; and |
|
|
(4) other effects of or issues with implementing |
|
|
Section 15B, Article 42.12, Code of Criminal Procedure, that are |
|
|
identified by the Texas Department of Criminal Justice. |
|
|
SECTION 8. Subdivision (1), Subsection (a), and |
|
|
Subdivisions (2) and (3), Subsection (c), Section 15, Article |
|
|
42.12, Code of Criminal Procedure, are repealed. |
|
|
SECTION 9. (a) In a criminal action under Section |
|
|
481.115, 481.1151, 481.116, 481.117, 481.118, Subsection (b), |
|
|
Section 481.119, Section 481.121, Subsection (a), Section 483.041, |
|
|
or Section 485.031, Health and Safety Code, pending on or commenced |
|
|
on or after the effective date of this Act, for an offense committed |
|
|
before the effective date, the defendant, if adjudged guilty, shall |
|
|
be assessed the punishment under Section 15B, Article 42.12, Code |
|
|
of Criminal Procedure, as added by this Act, if the defendant meets |
|
|
the eligibility requirements under that section and other law and |
|
|
so elects by written motion filed with the trial court before the |
|
|
sentencing hearing begins. |
|
|
(b) If the defendant does not make the election under |
|
|
Subsection (a) of this section, punishment is covered by the law in |
|
|
effect when the offense was committed, and the former law is |
|
|
continued in effect for that purpose. |
|
|
SECTION 10. The change in law made by Subsection (d-1), |
|
|
Section 411.081, Government Code, as added by this Act, applies to a |
|
|
person placed on community supervision under Section 15B, Article |
|
|
42.12, Code of Criminal Procedure, as added by this Act, on or after |
|
|
the effective date of this Act regardless of when the person |
|
|
committed the offense for which the person is placed on community |
|
|
supervision. |
|
|
SECTION 11. The changes in law made by this Act to Chapter |
|
|
508, Government Code, apply to a person who is released on parole or |
|
|
mandatory supervision before, on, or after the effective date of |
|
|
this Act. |
|
|
SECTION 12. The Texas Department of Criminal Justice shall |
|
|
submit to the legislature the first reports required by Sections |
|
|
508.325 and 509.016, Government Code, as added by this Act, not |
|
|
later than November 1, 2008. |
|
|
SECTION 13. This Act takes effect September 1, 2007. |
|
|
|
|
|
* * * * * |